DECREE-LAW Nº 40/95/M, August 14
Employees’ Compensation Insurance Ordinance
(Object)
This
Ordinance establishes the right to compensation in respect of occupational
accidents and occupational diseases.
Article 2
(Scope)
1. The
employees of all sectors of activity, excluding the civil servants to whom the
specific legislation on occupational accidents is applicable, are entitled to
compensation for loss or injuries resulting from accidents due to employment or
occupational diseases according to the terms referred to in this Ordinance.
2. The
employees, contracted in the Territory to render services to employers with
legal existence therein, who are victims of occupational accidents overseas
shall be entitled to the compensation provided for in this Ordinance, except if
the legislation of the country where the accident happened guarantees the right
of the victim to compensation.
3. If the
compensation referred to in the preceding paragraph is lower than the
compensation set out in this Ordinance, the employer shall be liable for the
difference.
Article 3
(Terminology)
(a) “ACCIDENT
ARISING OUT OF EMPLOYMENT”, “OCCUPATIONAL ACCIDENT” or only “ACCIDENT” – means
an accident occurring at the place of work and during the normal working hours
from which directly or indirectly result injuries, functional disorder or
disease causing the death of the employee or temporary or permanent reduction
of his working or earning capacity.
An accident is also considered for the purpose of this Ordinance to
arise out of the employment if:
(i) happening
outside the place of work and working hours during the execution of works
determined or authorized by the employer;
(ii) occurring
during the execution of voluntary work resulting in some profit for the
employer;
(iii) occurring
within the place of payment where the employee is for the sole purpose of
receiving his salary, wages or other earnings except when such payment is
effected by crediting the bank account of an employee;
(iv) during the
transportation of the employee to and from the place where medical assistance
or treatment will be provided as a consequence of a prior accident, and while
he remains at the said place for such assistance or treatment;
(v) during
travel to and from the place of employment, when the mode of transport utilized
is supplied by the employer.
(b) “EARNINGS”
– shall include:
(i) any
salary and wages paid in cash to the employee by the employer, as determined by
the contractual relationship of employment and which are not excluded by this
Ordinance;
(ii) any
privilege or benefit which is capable of being estimated in money, determined
by legal relationship of work and not excluded by this Ordinance, including the
value of any food, fuel or quarters supplied to the employee by the employer if
as a result of an accident or occupational disease the employee is deprived of
such food, fuel or quarters;
(iii) any
overtime payments or other special remuneration for work done, whether by way
of bonus, premium, allowance, commission or otherwise, if of constant character
or for work habitually performed;
(iv) tips, if the
employment be of such a nature that the habitual receiving thereof is open and
customary and is recognised by the employer;
but shall not include:
(i) remuneration
for intermittent overtime;
(ii) casual
payments of a non-recurrent nature;
(iii) the value
of a traveling allowance or any traveling concession;
(iv) contribution paid by
the employer of an employee towards any pension or provident fund;
(v) sum paid
to an employee to cover any special expenses incurred by him by the nature of
this employment.
(c) “EMPLOYEE”
– means a person, who works for another person for a payment, independently of
the nature and form of contract by which these services/labourer’s activities
are established as well as the person who is rendering his services under a
contract of apprenticeship or training, provided that, in any case, the
following persons are excepted from the definition of “employee”:
(i) any
member of the employer’s family who resides with him;
(ii) any
person to whom articles or materials are given out to be made up, cleaned,
washed, altered, ornamented, finished or repaired in his own home or on other
premises not under the control or management of the person giving out such
materials or articles and for whom the work is executed;
(iii) any
person who has a contract with the employer for a predetermined service with
total autonomy and freedom of action on the part of the person rendering such
service and with a previously fixed price.
(d) “EMPLOYER”
or “FIRM” – means each and every person including his representatives,
individually or collectively, who directly or indirectly avails himself of the
services/labourer’s activities of an employee, independently of the nature and
form of contract of which these services/labourer’s activities are established;
(e) “ENTITY
RESPONSIBLE” or “PERSON RESPONSIBLE” – means the entity who is liable for the
accident or for the occupational disease;
(f) “HOSPITAL”
– means any hospital, health centre or medical clinic;
(g) “INJURY”
– means any bodily injury, functional disorder or disease either occupational
or as a result of accident arising out and in the course of the employment;
(h) “INSURER”
or “INSURANCE COMPANY” – means a legally authorized entity that carries on
Employees’ Compensation insurance in the territory of Macau;
(i) “MEDICAL
PRACTITIONER” – means any medical practitioner or master of traditional Chinese
medicine who is registered with the Department of Health Services of Macau;
(j) “OCCUPATIONAL
DISEASE” – means any disease, as contained in the list annexed hereto, which is
contracted by an employee due solely and exclusively to his exposure, during a
determined period of time, to the nature of the industry, activity or
environment where he has rendered or is rendering his services, and
specifically:
(k) “OCCUPATIONAL
RESPIRATORY DISEASE” – means any alteration to the health of the individual
resulting from the inhalation of dust, gas, smoke and aerosols, or due to the
exposure to ionizing radiations or other physical agents wherein a cause/
effect relationship with the professional activity can be established,
independently of the symptomatology shown and of the physiopathological
mechanism involved;
(l) “PERMANENT
INCAPACITY” – means incapacity, resulting from an accident or occupational
disease suffered by an employee, which impedes the employee permanently from
rendering his full working or earning capacity. This may be:
(i) “total”
if the injuries suffered or a disease contracted by an employee impedes him
totally from working or earning;
(ii) “partial”
when the victim can still engage in some other employment after having suffered
a reduction in his working or earning capacity and such reduction is in
conformity with the percentage of loss of earning capacity schedule annexed
hereto.
(m) “PLACE OF WORK” –
means all the area of manufacture or activity of the employer;
(n) “TEMPORARY
INCAPACITY” – means incapacity, resulting from an accident or occupational
disease suffered by an employee, which impedes the employee temporarily from
rendering his full working or earning capacity. This may be:
(i) “total”
if, during such period of time, the employee is totally incapacitated from
working or earning;
(ii) “partial”
if, during the said period of incapacity, the victim is able to take up an
employment secondary to his normal employment or earning.
(o) “VICTIM”
– means an employee who sustains an accident during his employment or who is
suffering from occupational disease;
(p) “WORKING
HOURS” – means the normal period of work, the period preceding or following
such period of work, necessary for the preparation of work or for similar acts,
as well as normal or forcible interruption of work.
Article 4
(Liability)
Without prejudice to the provisions of Article 17 paragraph 1 of this
Ordinance and of the Organic Law of the Social Security Fund, approved by
Decree-Law 58/93/M, of 18th October, the employers shall be liable
for the compensation provided for in this Ordinance in respect of their
employees.
(Licence for
contract works)
1. Licences
for contract works shall only be granted if the petitioner can prove that his
liability for accidents occurring to his employees under his employment is
legally guaranteed.
2. The
competent authorities shall certify in the licence document referred to in the
previous paragraph the name of the insurance company and the relevant policy
number.
3. The
provisions of the preceding paragraphs shall apply, with necessary adaptations,
to the adjudication of public works in any form.
(Exclusions)
1. This
Ordinance does not apply to the accidents:-
a) occurring while the
employee is engaged in works of casual nature, of short periods, except in
activities for the purpose of profit;
b) occurring during the
execution of work of short duration, if the person to whom the service is
rendered usually works alone or with his family members.
2. The
exclusion referred to in (b) of the previous paragraph does not apply to
accidents resulting from the use of machinery.
Article 7
(Characterization)
1. No
compensation shall be payable in respect of accidents:
a) resulting from
deliberate act or omission of the victim, if he had acted without justified
reason in contravention of the security measures imposed by his employer;
b) resulting
exclusively from the victim’s serious and inexcusable fault;
c) resulting from
accidental or permanent loss of the use of the victim’s judgment, except if
this loss is due to the execution of the job itself, or is independent of the
victim’s wish, or if the employer or his representatives, knowing the states of
the victim, consent to the rendering of his services;
d) resulting from
“force majeure”;
e) resulting from
tumults, alterations to the public order and other acts of similar nature.
f) resulting from a
third party act proved to be exclusively
due to personal reasons and not labour related, in spite of its occurrence during work time, considering the
victim’s behaviour before and during the act and the connections with the author or his/her milieu, especially the connection with the organized crime. (*)
(*) Amendment – See Law nº 12/2001.
(*) NOTE: The English
version of paragraph 1 f) was translated by the Labour Affairs Bureau.
2. For the
purpose of paragraph 1 b) it shall not be considered as the victim’s serious
and inexcusable fault if the act or omission of the victim is due to this
familiarity with the daily risks involved in the execution of his job.
3. For the
purpose of paragraph 1 d) it shall be considered as a case of “force majeure”
when the accident is solely due to unavoidable forces of nature, independently
from human will and does not constitute a risk resulting from labour conditions
nor does it happen while the employee is working under the express direction of
the employer in obvious dangerous conditions, or during normal execution of
tasks imposed on the firm by the unexpected operation of the forces of nature.
4. Notwithstanding
the occurrence of situations referred to in preceding paragraph 1, the employer
is liable to provide to his employees first-aid and transportation to a place
where they can receive medical treatment.
Article 8
(Pathological
predisposition)
The
pathological predisposition of a victim of an accident does not exclude his
right for a complete recovery, except when it is the sole result of an injury
or disease or the outcome or fraudulent concealment.
Article 9
(Previous injury or
disease)
1.
When any injury or disease resulting from an
accident is aggravated by previous injury or disease, or when the latter is
aggravated by the accident the incapacity shall be determined as resulting
exclusively from the accident, except the victim had already received
compensation for the previous injury or disease.
2.
If the victim had been suffering from incapacity
before the accident, the compensation will correspond to the difference between
the previous incapacity and the compensation calculated for the latest accident
assuming to be the only cause of incapacity.
3.
An employee who sustains any injury or disease
while he is receiving medical treatment for an injury or disease resulting from
an occupational accident is entitled for compensation under this Ordinance, if
such injury or disease results from the said medical treatment.
Article 10
(Proof of accident)
1.
The injury or disease sustained by any employee
shall be presumed as resulting from an occupational accident, unless proved to
the contrary, when the same occurs:
a) at the
place of work, and during working hours;
b) under any
circumstances referred to in Article 3 paragraph (a) subparagraphs (i) to (v);
c) within
the period of three days after the accident.
2.
If the injury or disease is not apparent within the
period mentioned in the preceding paragraph c), the victim or his legal
beneficiaries entitled to the compensation shall prove that such injury or disease
was a result of the accident.
Article 11
(Fulfillment of
clinical and surgical prescriptions)
1.
The employee involved in an accident shall submit
himself for treatment by a medical practitioner appointed by the entity
responsible, in order to fulfill the clinical and surgical prescriptions
necessary for the cure of the injury or disease and for the recovery of his
working capacity, without prejudice to the right to claim for medical
practitioner appointed by the Court or for the services of the Department of
Health Services of Macau.
2.
No compensation shall be payable in respect of
incapacities recognized by the Court as consequence of unjustified refusal or
non-fulfillment of the clinical and surgical prescriptions referred to in the
preceding paragraph, or as having been voluntarily caused.
3.
The refusal of the employee to submit himself to a
surgical operation is always considered justified when the nature of the
operation or the condition of health of the victim is likely to endanger his
life.
Article 12
(Clinical cure)
For
the purposes of this Ordinance, clinical cure means a condition where the
injuries or disease are completely healed or are unlikely to change under
proper therapy.
Article 13
(Relapse or
aggravation)
1.
In case of a relapse or aggravation, the right to
compensation provided under this Ordinance shall prevail during such
re-incidence, whatever be the condition so ascertained.
2.
The provision of the preceding paragraph shall
include the intervening sickness relating to the consequences of the accident.
Article 14
(Transportation)
1.
The entity responsible shall provide free
transportation necessary for the medical observation and treatment of the
employee, including the transportation required for the appearance of the
employee before the public authorities on account of the accident.
2.
The provision of the preceding paragraph does not
include the appearances before public authorities requested by the victim,
which are considered to be totally unfounded.
3.
The mode of transport that the victim of an
accident shall use by right is public transportation, except when the medical
practitioner determines that, due to the state of the victim, other means of
transportation shall be provided.
4.
Where the victim is under 16 years or over 56 years
of age, or the nature of the injury or of the disease so demands, the person
accompanying the victim shall have the same right to transportation as the
victim.
Article 15
(Application)
The
rules applicable to occupational accidents shall equally apply to occupational
diseases without prejudice to those specifically applicable.